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36 posts from April 2020


F.H. Buckley on Why He Is Not an Originalist
Michael Ramsey

At Law & Liberty, F.H. Buckley: Why I Am Not an Originalist (responding to this post by Roger Pilon).  From the introduction:

The best arguments are often between people who agree on just about everything, and so it is with me and my good friend Roger Pilon. For while we’d be hard-pressed to find ourselves at odds over the problems of the day, we do disagree about the canons of constitutional interpretation. He is an originalist who argues that the Constitution’s meaning is to be found in its text, while I say that originalism is either wrong or self-defeating.


If Roger is right, a judge is bound to give effect to the words of a constitution, however unjust or wrong-headed they might seem. The American Constitution, a fascist constitution, it’s all the same to an originalist. Any attempt to mitigate the rigors of a racist constitution would therefore be condemned by the originalist. But I don’t think many of us would agree with this. Even a liberal constitution may stand in need of judicial tweaking, and the best example of that is the 1867 British North America (BNA) Act that united Canada.

Professor Buckley is an insightful scholar -- in particular, I highly recommend his book on executive power The Once and Future King: The Rise of Crown Government in America (Encounter Books 2014).  But I think his assessment of originalism and its alternatives is mistaken.  Here's his concluding paragraph:

Is it all politics, then? If it were, I might indeed be an originalist, in America at least. And in 2020 at least, not 1857. But the rule of law means that it can’t be all politics. Instead, we must seek some neutral ground between a false originalism that at its core is politically right-wing and the left-liberalism of recent Supreme Court jurisprudence. That entails a legal regime in which majority decisions of the Supreme Court are legitimately the law of the land, even if one thinks them ill-considered. But in that case, we might, with the benefit of experience, learn how those rules have coarsened and harmed us, and false starts enacted by a temporary Supreme Court majority might prudently be reversed without waiting for a politically impossible constitutional amendment. That’s not the judicial revolution the originalist wants, but then good lawyers instinctively mistrust revolutions.

This passage posits a "rule of law" that provides a "neutral ground."   But what is Buckley's "neutral ground" and "rule of law" if it's not fidelity to the law's text and original meaning?  The paragraph suggests "majority decisions of the Supreme Court ... even if one thinks them ill-considered."  To be sure, stare decisis is an important consideration, and most originalists would agree.  But past decisions cannot provide the broad neutral ground Buckley supposes.  First, most contested questions of modern constitutional law do not have a Supreme Court decision directly on point.  What would Buckley have us do then, if not examine the text and its original meaning?  It seems inevitable that judges would turn to policy judgments (and in any event Buckley provides no alternative).  Second, no one thinks stare decisis is an inflexible command, and indeed Buckley urges that decisions that "have coarsened and harmed us ... might prudently be reversed."  But on what "neutral ground" shall we decide which decisions "have coarsened and harmed us"?  There is none; this is necessarily a policy conclusion.

That Buckley wants judges making policy conclusions is apparent from the body of the essay.  He praises the Canadian Supreme Court's interpretation of the BNA Act because "the Court shifted power from Ottawa to the provinces; and if you’re a federalist, as Roger and I are, I should have thought you’d be pleased with this."  That is a policy assessment.  If you're not a federalist, you won't be pleased about it.  Federalism, in this sense, is a preferred policy outcome.  Originalism says that the Court's BNA Act interpretation should be evaluated on whether it was a sound assessment of the text and original meaning of the BNA Act.  Professor Buckley says that it should be evaluated on whether it advanced his particular ideological commitments.  It's fine to criticize originalism on this ground, but let's be clear that the proposed alternative is not a "neutral ground" or the "rule of law" -- it is a preferred policy outcome.

I agree that we should "seek some neutral ground between a false originalism that at its core is politically right-wing and the left-liberalism of recent Supreme Court jurisprudence."  True originalism (which at its core is sometimes politically right-wing and sometimes not) is a possible neutral ground.    Buckley, instead, wants to replace the Court's left-liberal policy-oriented jurisprudence with right-conservative policy-oriented jurisprudence.  That's a reasonable position to have, but it's not neutral ground.  And in the end, it makes constitutional law, if not "all politics," at least mostly politics.


New Book: "The Living Presidency" by Saikrishna Prakash
Michael Ramsey

Recently published, by Saikrishna Prakash (Virginia):  The Living Presidency: An Originalist Argument against Its Ever-Expanding Powers (Belknap Press 2020).  Here is the book description from Amazon:

A constitutional originalist sounds the alarm over the presidency’s ever-expanding powers, ascribing them unexpectedly to the liberal embrace of a living Constitution.

Liberal scholars and politicians routinely denounce the imperial presidency―a self-aggrandizing executive that has progressively sidelined Congress. Yet the same people invariably extol the virtues of a living Constitution, whose meaning adapts with the times. Saikrishna Bangalore Prakash argues that these stances are fundamentally incompatible. A constitution prone to informal amendment systematically favors the executive and ensures that there are no enduring constraints on executive power. In this careful study, Prakash contends that an originalist interpretation of the Constitution can rein in the “living presidency” legitimated by the living Constitution.

No one who reads the Constitution would conclude that presidents may declare war, legislate by fiat, and make treaties without the Senate. Yet presidents do all these things. They get away with it, Prakash argues, because Congress, the courts, and the public routinely excuse these violations. With the passage of time, these transgressions are treated as informal constitutional amendments. The result is an executive increasingly liberated from the Constitution. The solution is originalism. Though often associated with conservative goals, originalism in Prakash’s argument should appeal to Republicans and Democrats alike, as almost all Americans decry the presidency’s stunning expansion. The Living Presidency proposes a baker’s dozen of reforms, all of which could be enacted if only Congress asserted its lawful authority.

Endorsed!  The complaint about the evolving presidency has always sat uncomfortably beside the celebration of the evolving Constitution.  It's going to be even more uncomfortable now.


James Cleith Phillips: The Overlooked Textual Evidence in the Title VII Cases
Michael Ramsey

James Cleith Phillips (Stanford University - Constitutional Law Center): The Overlooked Textual Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality (8 pages) on SSRN.  Here is the abstract:

This short essay focuses on a linguistic (and therefore textualist) principle overlooked in the trio of Title VII cases currently before the U.S. Supreme Court: compositionality. By taking that principle seriously--a principle the Supreme Court has recognized in some form for a century--the essay uncovers corpus linguistic and dictionary evidence contemporaneous to the enactment of Title VII that sheds light on the relevant statutory language. That light provides an answer to the interpretive question the Court is facing.

Title VII makes it unlawful “to discriminate against any individual . . . because of such individual’s . . . sex.” Many observers seem to drop the word “against” and focus just on “discriminate.” Or if they do take “against” into account, they nonetheless fail to read the whole operative statutory phrase—including “discriminate,” “against,” and the relevant trait (in this case, sex)—as an indivisible whole. The argument for the plaintiffs, in particular, would require us to give “discriminate” and “against” the meaning each of them would have if it existed apart from the rest of the phrase. This “dissection” approach is most obvious in the most precise and careful formulations of the plaintiffs’ central textualist argument, as this Essay will show.

But that approach, as I will also show, violates the linguistic principle of compositionality. So it produces a demonstrably inferior reading of the text on purely linguistic grounds, prior to any appeal to subjective intent, purpose, policy concerns, or other modes of legal argument.

That is because, as it turns out, the phrase “discriminate against . . . because of [some trait]” was a linguistic unit (a composite) by the time of Title VII’s enactment, which makes the principle of compositionality relevant. And read as a composite, the phrase had more semantic content than one could glean from separately analyzing and then amalgamating its three parts (“discriminate,” “against,” and “sex”). While a “dissection” reading might suggest that Title VII covers any adverse treatment that even adverts to sex, as plaintiffs suppose, a linguistically superior reading (taking compositionality into account) proves that the operative text refers only to adverse treatment that rests on prejudice—i.e., unfair beliefs or attitudes—directed at some or all men, or at some or all women. And this defeats the plaintiffs’ textualist argument. Whatever the legal merits of their case overall, their textualist case fails because it violates a basic linguistic principle as applied to linguistic data from the era. But as it happens, the prejudice-based conception of discrimination that is required by the text properly read, also fits well with all the Court's precedents on sex discrimination.

To establish the above points about the text, this Essay appeals only to (1) dictionaries from the time of Title VII's enactment, and (2) systematic data on linguistic usage from the same period (which this Essay draws from the Corpus of Historical American English, containing 24 million words' worth of naturally occurring text that provides a balanced snapshot of American English usage).

(Via Ed Whelan at NRO Bench Memos).


Reminder: Executive Branch Review Week this Week (Especially Tomorrow)
Michael Ramsey

Following up on this post, a reminder that this week is the Federalist Society's Executive Branch Review Week, featuring teleforums and webinars on topics related to executive power all week.  The full schedule is available here.

In particular, tomorrow features a series of webinar panels: 

Executive Branch Review Webinar Panels
Tuesday, April 28

These panels will be available to watch through a webinar platform and live-streamed on YouTube, all in real time. The panels will also be recorded for later viewing on our YouTube channel. 

Continuing Legal Education (CLE) credits will be available for the webinars [but not the teleforums].

William Baude on Originalism and Incorporation
Michael Ramsey

At Summary, Judgment, William Baude: Originalism and "Dual-Track Incorporation".  From the introduction:

There’s lots to say about [the Supreme Court's] decision in Ramos v. Louisiana, which said that the Sixth Amendment requires unanimous jury verdicts, that the Fourteenth Amendment requires states to obey exactly the same Sixth Amendment standards as the federal government, and that any precedent to the contrary either didn’t exist or was overruled. But for now I have just one thought on that middle premise — that incorporated rights must mean the same thing against the states as against the federal government.

And from further along:

The kind of two-track incorporation that Justice Gorsuch rejects [in Ramos] is the “the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’” I think he rejects this notion for good reason, and it’s easy to see why an originalist would be suspicious that this was just a rear-guard action to nullify the incorporation of the bill of rights.

But the fact that this kind of dual-track incorporation is wrong does not mean that all kinds of dual-track incorporation are wrong. In particular, there are at least two possibilities that originalists ought to seriously consider that would result in incorporated rights under the Fourteenth Amendment having a different scope from the enumerated rights against the federal government....

I agree, at least to this extent: the proposition that incorporated rights under the Fourteenth Amendment mean the same thing that those rights mean in the Bill of Rights (a) isn't self-evident, and (b) hasn't been conclusively demonstrated by originalist scholars or judges.


John McGinnis on the Chevron Doctrine and Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: The Chevron Doctrine’s Shrinking Domain. From the introduction:

Today, Chevron is under fire. It has not been overruled nor do I think it is likely to be. But its domain is shrinking and will continue to get smaller. If President Trump gets another term, it may well resemble the Cheshire cat—a still-powerful symbol for a body of law without much doctrinal substance. Just as Chevron was an iconic decision marking the continuing rise of the power of the administrative state, its relative decline in importance captures the three reasons that the administrative state is being cut back. Thus, this essay will use Chevron to introduce these three factors—the return of originalism, the rise of textualism, and the greater distrust of unsupervised expertise—that are transforming administrative law and, with it, the administrative state.

On Chevron and originalism:

The most important influence is the rise of originalism, because important elements of the administrative state, including Chevron, are in tension with the original Constitution’s separation of powers. For instance, given that the Constitution grants Congress legislative authority, it seems anomalous that the executive can wield these powers and make its own determination of what is legal through statutory interpretation. To be sure, the question of where the legislative power ends and the executive power begins is a difficult one, but that does not mean that a line cannot be drawn. For instance, Chief Justice John Marshall captured an important distinction in the Founding era when he suggested that Congress must legislate on important subjects when they affect private rights even if the executive could be left to fill in the details.

Chevron thus potentially ran afoul of the nondelegation doctrine by allowing the agencies to make major decisions about what the law meant, not just fill in the details of intricate statutes. But in the recent case of King v. Burwell, Chief Justice Roberts made clear in a majority opinion that the Chevron doctrine would not apply to major questions, such as the one in that case (whether Affordable Care Act tax credits should be provided to those purchasing insurance under federal as well as state exchanges). While Roberts suggested that Congress would not want Chevron to apply to such major questions, the more persuasive basis of the decision is the nondelegation doctrine. Applied to major questions, Chevron, as originally decided, sustains a huge delegation of legislative power to the agency, permitting it to interpret a central element of a statute....

And on Chevron and textualism:

Textualism is also playing a part in shrinking Chevron. The doctrine seems to assume an intentional method of interpretation of statutes. In Chevron, Justice John Paul Stevens stated that an agency is bound by “a clear intent of Congress,” but “otherwise can provide its own reasonable interpretation.” But if textualism is used as the method of statutory interpretation, the question becomes not whether Congress had any conscious intent on a particular issue, but rather whether the text speaks to the issue. That more encompassing inquiry can reduce the scope for agency power ....


Aaron Gordon: A Rebuttal to 'Delegation at the Founding'
Michael Ramsey

Aaron Gordon (Yale University, Law School, J.D. 2020) has posted A Rebuttal to 'Delegation at the Founding' (51 pages) on SSRN.  Here is the abstract:

In their recent paper “Delegation at the Founding,” Julian Mortenson and Nicholas Bagley take on the “contemporary turn of mind” in favor of reviving the long-dormant Nondelegation Doctrine, a principle of constitutional law holding that Congress may not delegate to any other entity authority so broad as to be “legislative” in nature. Mortenson and Bagley take particular aim at those modern nondelegation proponents that advocate the Doctrine’s revival on originalist grounds, arguing that the “nondelegation doctrine thus has nothing to do with the Constitution as ... originally understood .... You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both.” Specifically, Mortenson and Bagley make two claims in response to modern nondelegation advocates: first, “the founders thought that legislative power, which they understood as the authority to issue authoritative instructions, could be delegated by whomever happened to hold it, so long as it wasn’t permanently alienated”; and second, “[u]nder the standard constitutional grammar of the founding,” any “rule-making pursuant to statutory authorization”—“no matter how broad, vague, or consequential” the authorization—“was an exercise of executive Power.”

As one of the less illustrious targets of Mortenson and Bagley’s critique, I beg to differ. In a prior article, "Nondelegation," 12 NYU J.L. & Liberty 718 (2019), I argued, among other things, that as a matter of original meaning, the Nondelegation Doctrine has a firm constitutional foundation; congressional “grants of rule-making power to agencies very often constitute delegations of legislative authority, and such delegations violate the Constitution.” My confidence in these conclusions has not been shaken, despite one hundred ten pages of Mortenson and Bagley's best efforts. If anything, their recent paper has strengthened my confidence in my earlier claims—all of which I reaffirm. Here’s why.

The Mortenson & Bagley paper is available here.  And here is Aaron Gordon's initial paper.  Also relevant: Ilan Wurman's response to Mortenson & Bagley, Nondelegation at the Founding.  In all, that's over 300 pages of nondelegation!


Aaron-Andrew Bruhl: Methodological Precedent in Statutory Interpretation
Michael Ramsey

Aaron-Andrew P. Bruhl (William & Mary Law School) has posted Eager to Follow: Methodological Precedent in Statutory Interpretation (North Carolina Law Review, forthcoming) (73 pages) on SSRN.  Here is the abstract:

An important recent development in the field of statutory interpretation has been the emergence of a movement calling for interpretive methodology to be given precedential effect. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology — which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology.

This Article shows that both sides have misapprehended the current state of affairs. The federal courts already display a substantial amount of methodological precedent. Commentators have underestimated its prevalence for a few reasons, some conceptual and some empirical. On the conceptual side, scholars are rarely explicit about what they believe methodological precedent entails, and some of their implicit criteria are incorrect. On the empirical side, commentators focus too much on the Supreme Court and a few of its fiercest methodological battles rather than viewing the federal judiciary as a whole. If one applies the right criteria and expands the field of view, one sees that we already have a federal interpretive system that is at least semi-precedential. Methodological precedent is most prominent in the lower courts, but there is unappreciated evidence from the Supreme Court too, and the precedential nature of the system is likely to increase.

Adopting a proper understanding of methodological precedent’s nature and extent has some implications for the normative debate over expanding the role of precedent in interpretive methodology. Some of the implications should hearten the proponents of methodological precedent. But the fact that the current level of methodological precedent has not received its proper due may show that its proponents’ real aims are unlikely to be satisfied even as methodological precedent expands and solidifies.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!")

I'm not sure if what the author is describing is so much a system of precedent (or semi-precedent, as he says) as it is a shift in legal culture in which major actors converge on a methodology.  It is in any event very important.


Next Week is Executive Branch Review Week
Michael Ramsey

The Federalist Society will hold its annual Executive Branch Review Conference (virtually) next week as "Executive Branch Review Week" (from April 27 to May 1).  Here is the announcement:

The Eighth Annual Executive Branch Review Conference is being transformed into a virtual Executive Branch Review Week of events.

Executive Branch Review Webinar Panels
Tuesday, April 28

9:00 a.m. - 10:00 a.m. EDT
Restoring the Executive Power: Revisiting Humphrey's Executor, Reviving the Unitary Executive

10:30 a.m. - 11:30 a.m. EDT
Restoring Judicial Power: Righting the Ship of Judicial Review and Deference Doctrines

12:00 noon - 1:00 p.m. EDT
Restoring the Legislative Power: The Role of Nondelegation Doctrine and Legislative Vetoes

These panels will be available to watch through a webinar platform and live-streamed on YouTube, all in real time. The panels will also be recorded for later viewing on our YouTube channel. 

Continuing Legal Education (CLE) credits will be available for the webinars.

Executive Branch Review Teleforum Discussions
Monday, April 27 - Friday, May 1

Monday, April 27

12:00 noon - 1:00 p.m. EDT
Nationwide Injunctions

Wednesday, April 29

12:00 noon - 1:00 p.m. EDT
Unitary Executive and Independent Agencies

Wednesday, April 29

2:30 p.m. - 3:30 p.m. EDT
Federalism, COVID-19, and the Administrative State

Thursday, April 30

12:00 noon - 1:00 p.m. EDT
Executive Orders on Guidance: Implications and Next Steps

Thursday, April 30

3:00 p.m. - 4:00 p.m. EDT
FTC Settlements and Consent Decrees: Challenges and Opportunities

Friday, May 1

12:30 p.m. - 1:30 p.m. EDT
COVID Liability Issues

Friday, May 1

3:00 p.m. - 4:00 p.m. EDT
Address by OIRA Administrator, Hon. Paul J. Ray

These Teleforum calls will be available to listen to through a call-in conference line; specific times will be sent via email closer to the event.

More information is available here.


Two Originalist Responses to Frank Buckley
Michael Ramsey

A while back Professor Buckley published the essay We Can Do Better Than the Framers’ Constitution at Law & Liberty.  There are now two responses at that site:

Roger Pilon: We Can Do Worse Than the Framers’ Constitution.  From the core of the argument:

... Buckley writes that originalism’s “plausibility as a rule that deserves to be followed rests on a rejection of its principal alternative—the left-liberal egalitarianism and libertarianism that informs much of our constitutional law.”

Not so. In fact, the premise on which originalism rests is straightforward and simple: judges should follow originalist principles—they should interpret and apply the law as written—because otherwise they’re not applying law, but something else, like their own “corrections” of the law. Thus when Buckley goes on to write that “originalism is necessarily a political creed that seeks to hide its politics,” he’s got it rather backwards. It’s a legal creed that makes no effort to hide—or reveal—any politics, including the politics that brought the law into being. Again, it aims simply to read and apply that law as written. And that is true whether judges are applying the American, the Canadian, or the old Soviet constitutions.

Buckley’s confusion rests, then, not with his contention that originalism is a form of legal positivism. He’s right on that. It is such a form, for originalism takes it as given that the duty of a judge is to apply the law to the case at hand. But to do that he must determine what the law is, as distinct from what it might or should be; and to do that he must read the words of that law consistent with their original public meaning. Otherwise, again, he’s not applying the law or fulfilling his duty as a judge. If the result of applying the law as written and properly read is morally unsatisfying, then change the law. But that’s for a lawgiver to do, not for a judge. Buckley would have the judge be a legislator. That is the end of the rule of law.

This is similar to what I wrote, much less eloquently, in response to Buckley here.

James Rogers: The Honesty of Originalism.  From the introduction:

The central case for legal originalism is commonsensical and compelling: Read legal texts as we read everything else—honestly. Think of it as an application of the Golden Rule: Read others as you would like to be read yourself, including legal texts. And if you don’t like what you read in a legal text when you’ve read it honestly, the solution is not then to read the text dishonestly, the solution is to advocate changing the legal text.

So, contra F.H. Buckley, it is not the case that “if originalism commends itself, then, it must be because the Framers’ Constitution is morally superior to that of today’s Constitution.” You don’t read the letter from Aunt Jenny honestly only if what she wrote is morally superior to anything else she might have written. You read it honestly and then disagree with her if you find what she’s written to be morally wanting. (We might even advocate to Aunt Jenny that she amend her letter: “That’s not true; you take that back!”)

And, contra Adrian Vermeule, reading texts honestly—including legal texts—is not a “political and rhetorical” strategy based on fleeting political “utility.” If one doesn’t believe that the current Constitution promotes society’s “common good” if read honestly, then propose a different constitution that would achieve the common good as one sees it, and we can debate the proposal. But don’t advocate reading the current Constitution dishonestly to achieve purposes any honest reader would admit the text doesn’t support.

Both ignore that the central attraction for originalism is a moral attraction—that it simply commends reading legal texts honestly.

The real problem for both left- and right-antioriginalists is that the U.S. Constitution is difficult to amend without a fair degree of consensus that it should be changed. So people who want to change the Constitution seek easier routes by which they might change the meaning of the Constitution without wasting their time advocating for a constitutional amendment.